Did Bush commit an impeachable offense?

Did President Bush commit an impeachable offense by authorizing the NSA to spy on American citizens? That’s what former White House counsel John Dean has told California Senator Barbara Boxer (hat tip: Armchair Generalist).

Article II, Section 4 of the Constitution says this about the removal of the president from office:

Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

There’s no real definition of what constitutes “high crimes and misdemeanors”. In the parlance of the times “high crimes” were crimes against the State itself, i.e. abuse of power.

The reality is that impeachable offenses are defined circularly: they are precisely what the House of Representatives finds that they are. Under current circumstances it seems pretty unlikely that the House will find what the President has done (whatever that is) will rise to the level of an impeachable offense.

Perhaps the better question is should the authorization be an impeachable offense? If what the President did was a violation of the law and the law was constitutional and the President knew what he did was a violation of a constitutional law, then it probably should be but that’s an awful lot of if’s and those if’s are, apparently, not completely clear.

If I were a sitting Congressman I think that I might hesitate before going too far down this road. The courts might find that Congress was acting unconstitutionally by arrogating to itself power that the Constitution does not give to Congress. And that, in turn, might be a felony which is a constitutional basis for the removal of a sitting Congressman.

Such a course of action might redound against the Congress politically as well. Imagine the following the scenario. After removing President Bush (and, presumably, Vice President Cheney) from office for violations relating to the surveillance of terrorism suspects, a terrorist act with mass casualties occurs in the United States. When asked about the attack, the sitting President (whoever that might be) says “We could have prevented it if we had done xxxx, but the Congress has tied my hands.”

One thing is clear: partisan discord should not be allowed to become a grounds for impeachment whatever water has flowed under the bridge.

UPDATE: There’s a lively conversation on the subject of the wiretaps going on at Winds of Change.

15 comments… add one
  • sjb Link

    If Mr. Dean had said something favorable about George Bush, would he have been described as “former Nixon White House Counsel John Dean”?

    Just askin’.

  • Ron Link

    John Dean has no celebrity apart from his role as former Nixon White House Counsel John Dean. That is who he was, who he is, who he will always be. It is interesting that once a person gets a taste for toppling presidents, it never leaves them. Like a lion that develops a taste for human flesh, the president topplers will never stop doing the thing that defined their lives, and consumed them ever since.

    Now Barbara Boxer, that’s a real winner. If she could ever get the hair, the makeup, the outfit work out–and somehow tone down the ataxia–she might someday be another Hillary.

  • Constance Link

    How about a vote by we the people? Check out the MSNBC poll.

    Do you believe President Bush’s actions justify impeachment? * 117903 responses

  • Constance – Nice poll! Since Bush is polling at 40% and 85% of those polled want him impeached, that would mean that 25% of people who approve of Bush nevertheless want him impeached. Brilliant!

    Where did you get the poll url from, The Daily Kos?

  • Online polls are a measure of how strongly somebody feels about the issue. It’s not hard to write a script that’ll jigger most online polls.

  • Ron Wright Link


    Hey thanks for the mention of the thread over at WoC. A.L. finally closeed this thread and it’s now being discussed there at:

    “Intel and “Boots on The ground”

    The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror –

    What Should Our Domestic Rules of Engagement be?


    and more debate at The Volokh Conspiracy:

    The “Special Needs” Exception:
    Radiation Surveillance:
    FBI Radiation Surveillance Program:


  • With all due respect Mr. Gandleman, the issues are more difficult that just defining “high crimes and misdeamenors” as set forth in Article 2 of the Constitution. The argument, that the President has “inherent” power to break exisiting Federal law covering the issuance of warrants for wiretaps, is absurd on its face. I defy any of the Federalist Society gremlins working for Attorney Genral Gonzalez to point to the language where such broad unchecked power is granted to the President. They can’t, because the framers were very careful to NOT grant such expansive powers to the executive alone. The predicate is a Declaration of War. Yes, I know that’s a technicality. Right. We are dealing with Constitutional Law…a subject of much technical difficulty.

    The question of impeachment is barely a blip on the media radar screen now. HOWEVER, more information will come to light and when it does, it will not make for restful sleeping at 1600 Pennsylvania Avenue. All of which is beside the point. Impeachment will be a function of whether or not the Democrats win back the Houseof Representatives. If they do, at a minimum, there WILL be impeachment hearings. If they don’t win back the House, it all goes away. (Accept for Cheney’s involvment with the Plame outing…he will have to be sacrifice and exchanged for Condi sometime in 2006.

    Best Wishes


  • First, I’m not Mr. Gandelman, thanks anyway. Second, some of the foremost legal scholars in the country including Cass Sunstein who literally wrote the book on constitutional law and Richard Posner have noted that the Administration’s case is pretty strong. If those are the people you’re characterizing as “Federalist Society gremlins” that’s a bald-faced lie. As Sunstein has observed the President’s constitutional powers and the authorization to use force passed by Congress in 2001 working in combination make for a powerful argument. Third, you wrote:

    Impeachment will be a function of whether or not the Democrats win back the Houseof Representatives.

    There I partially agree with you. However, you might want to read the recent post on Real Clear Politics which argues that the Democrats’ re-capturing the House is far-fetched. I think you’ve missed something and it’s the key point of this post: things are only possible that are politically possible and I suspect that impeaching Bush on these particular grounds is not politically possible. To do so would grant the Democrats ownership of future terrorist attacks in the United States for the reasons indicated in the post, are beyond their control, and would consign the Party to oblivion. Better to hold back, wait for 2008, and blame Bush if the worst happens.

  • pennywit Link

    From what I can see, we have about four possible scenarios:

    Scenario 1: In the wake of 9/11, the president and/or his senior staff went to their attorneys and asked about the limits of what the president can do in a situation like the war on terror. The attorneys returned opinions that (as often happens when a conclusion is foreordained) erred on the side of accreting too much power to the president, and now we’re seeing the fallout you often see when one branch ventures into uncharted constitutional territory.

    Scenario 2: Evil Bushitler and his sidekick “Oil” Cheney concocted a scheme to give the president as much power as possible, send as much money as possible to the oil industry, and bring the country under eternal Republican domination.

    Scenario 3: The president decided to explore the outer limits of his power, and Vice President Cheney, who has long believed in a strong executive branch, influenced the legal advice as much as possible to return the executive branch to the pre-eminence it enjoyed before the post-Watergate reforms.

    Scenario 4: President Bush said “to hell with it” and decided to do what he thought needed to be done, and lawyers etc. in the branch are trying to play catch-up.


  • I think that’s a very good reading of the tea leaves, pennywit. I’d like to think it was Scenario 4 but, human beings what they are, all four are probably true at least to some extent.

  • pennywit Link

    Including No. 2?? Even I think that one’s a stretch.


  • It’s the paradox of my worldview, pennywit. I’m always ready to believe the best and the worst about everyone. Simultaneously.

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